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Puerto Rican Prison System Unconstitutional
In two separate orders published as one case, a federal district court in Puerto Rico found the entire island's prison system to be unconstitutional and found prison officials to be "not credible." Overcrowding was 3-5 times rated capacity, with prisoners sleeping in closets, covering all floor areas and in bunks lined up side by side so tightly prisoners had to climb into bed from the ends. Murder, rape and assaults were common. Toilets were hard to get to, sinks did not exist and one shower per 60 prisoners was common. The prisons were also infested with vermin and insects.
Security was almost non-existent with guns and explosives being found in prisoner areas and being used during riots or attacks by prisoners. Guards frequently did not go into overcrowded buildings or to their designated posts due to a fear of violence. Many prisoners sought protective custody where medical and other services were not available. No measures were taken to alleviate gang activity.
Disciplinary hearing proceedings were either non existent or slow and arbitrarily and capriciously violated due process. For pretrial detainees, they were required to obtain counsel, arrange for bail, establish outside communication on their own with no facility assistance.
Classification did not separate convicts from pretrial detainees. All prisoners were classified as medium or maximum security. Criminal history or violent behavior were not considered in designating security levels or housing locations. No review progress existed after the initial designation.
Rehabilitation, education and programs were practically non existent. To earn good time, prisoners were required to work or participate in rehabilitation programs. Work was generally not available, education was not structured and often skipped due to staffing shortages and. recreation was unavailable. The court referred to it as "degrading idleness."
Because no rehabilitation programs were available, parole and good time credits were denied. Prisoners were denied the ability to present evidence favorable to their release.
Almost 60% of the system's prisoners were involved with drugs. Pretrial prisoners could not get treatment, and. low custody prisoners afraid of being transferred to medium or maximum security levels had to sign waivers to receive drug treatment. They would later be denied parole for not completing drug treatment.
The court held these conditions exacerbated by overcrowding and the administration's refusal to cooperate in reform and change. All told some 20 published rulings have come from this litigation. The court found violations of the Fifth, Eighth and Fourteenth amendments.
In a second order the court issued an injunction for the defendants to pay $150,000 to cover the cost of monitoring compliance with the injunction, the amount was to be increased as necessary. The court also established for reporting and progress reports directly to the court for enforcement of its injunction ordering dramatic changes in prison facilities and practices. See: Morales Feliciano v. Romero Barcelo, 672 F. Supp. 591 (D PR 1986).
Security was almost non-existent with guns and explosives being found in prisoner areas and being used during riots or attacks by prisoners. Guards frequently did not go into overcrowded buildings or to their designated posts due to a fear of violence. Many prisoners sought protective custody where medical and other services were not available. No measures were taken to alleviate gang activity.
Disciplinary hearing proceedings were either non existent or slow and arbitrarily and capriciously violated due process. For pretrial detainees, they were required to obtain counsel, arrange for bail, establish outside communication on their own with no facility assistance.
Classification did not separate convicts from pretrial detainees. All prisoners were classified as medium or maximum security. Criminal history or violent behavior were not considered in designating security levels or housing locations. No review progress existed after the initial designation.
Rehabilitation, education and programs were practically non existent. To earn good time, prisoners were required to work or participate in rehabilitation programs. Work was generally not available, education was not structured and often skipped due to staffing shortages and. recreation was unavailable. The court referred to it as "degrading idleness."
Because no rehabilitation programs were available, parole and good time credits were denied. Prisoners were denied the ability to present evidence favorable to their release.
Almost 60% of the system's prisoners were involved with drugs. Pretrial prisoners could not get treatment, and. low custody prisoners afraid of being transferred to medium or maximum security levels had to sign waivers to receive drug treatment. They would later be denied parole for not completing drug treatment.
The court held these conditions exacerbated by overcrowding and the administration's refusal to cooperate in reform and change. All told some 20 published rulings have come from this litigation. The court found violations of the Fifth, Eighth and Fourteenth amendments.
In a second order the court issued an injunction for the defendants to pay $150,000 to cover the cost of monitoring compliance with the injunction, the amount was to be increased as necessary. The court also established for reporting and progress reports directly to the court for enforcement of its injunction ordering dramatic changes in prison facilities and practices. See: Morales Feliciano v. Romero Barcelo, 672 F. Supp. 591 (D PR 1986).
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Related legal case
Morales Feliciano v. Romero Barcelo
| Year | 1986 |
|---|---|
| Cite | 672 F.Supp. 591 (D PR 1986) |
| Level | District Court |
| Attorney Fees | 0 |
| Damages | 0 |
Carlos Morales Feliciano, et al., Plaintiffs v. Carlos Romero Barcelo, et al., Defendants
Civil No. 79-4(PG)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
672 F. Supp. 591; 1986 U.S. Dist. LEXIS 27927
March 20, 1986, Decided
March 21, 1986, Filed
SUBSEQUENT HISTORY: [**1]
Reported at: 672 F. Supp. 591 at 621.
PRIOR HISTORY: Original Opinion of March 21, 1986, Reported at: 672 F. Supp. 591.
OPINIONBY:
PEREZ-GIMENEZ
OPINION:
[*621] ORDER OF REFERENCE
PEREZ-GIMENEZ, Chief U.S. District Judge
In a Memorandum Opinion entered this date the Court has found that there is widespread noncompliance with its September 5, 1980, preliminary emergency injunction and that conditions throughout Puerto Rico's adult penal institutions are unconstitutional. For the reasons set forth in this Order of Reference, the Court will appoint two Court Monitors to make a current assessment of the state of defendants' compliance with its September 5, 1980, order, to report on conditions disclosed by evidence subsequently heard and seen by the Court, and to prepare a proposed detailed remedial order calculated to bring about constitutional conditions throughout the correctional system. On receipt of the Court Monitors' findings and recommendations, and after independent review of those findings and recommendations, the Court will issue a final order, including complete findings of fact and conclusions of law, and a comprehensive remedial injunction including the continued use of the [**2] Court Monitors to monitor defendants' compliance with that injunction.
[*622] This action was commenced by a prisoner's letter addressed to the Court on November 9, 1978. Counsel was appointed to represent the complainant on January 3, 1979, and a complaint was filed on February 7 of that year. Following certification of the action as a class action pursuant to Rule 23 F.R.Civ.P. and lengthy discovery, a hearing commenced on May 27, 1980, on plaintiffs' motion for a preliminary injunction. After 17 days of hearings, the Court, by order entered on September 5, 1980, granted emergency relief to the plaintiff class in a number of areas. Feliciano v. Barcelo, 497 F. Supp. 14 (D.P.R. 1979). n1 Further proceedings on plaintiffs' application for permanent injunction were held from November 12, 1980, through March 2, 1981. The Court has supplemented the record by admission of documentary evidence at various times since then. In addition, between May 23 and June 30, 1984, the Court personally inspected Bayamon, the State Penitentiary, the Intensive Treatment Unit (UTI), Miramar, Guayama, Camp Guavate, Ponce, Arecibo, Humacao and Vega Alta. On October 28, 1985, the Court again visited [**3] Bayamon, Ponce, the State Penitentiary and the Intensive Treatment Unit (UTI). Without question, all evidence received and viewed by the Court to date demonstrates that conditions throughout Puerto Rico's correctional system fall far short of constitutionally mandated minimum standards and conditions.
n1 The reported opinion is incorrectly dated January 3, 1979.
On August 26, 1985, the Court directed defendants to report on the state of their compliance with the Court's September 5, 1980, preliminary injunction. By defendants' own admission during the course of a hearing held on September 30, 1985, the report filed by them was not reliable for lack of proper verification. Nonetheless, the Court finds that defendants' report corroborates the Court's finding of pervasive unconstitutional conditions in all of Puerto Rico's prisons, as well as defendants' inability or unwillingness to provide the Court with accurate information regarding defendants' state of compliance with the September 5, 1980, order.
As the Memorandum [**4] Opinion entered today demonstrates, the Court's 1980 order has been largely ignored by defendants. The record of intransigence and lengthy noncompliance by defendants constitutes an "exceptional condition" within the meaning of Rule 53(b) authorizing the appointment of a Court Monitor. Gary W. v. Louisiana, 601 F.2d 240 (5th Cir. 1979). This record also convinces the Court that the achievement of compliance with the Court's current and prospective remedial orders in this case will be unusually difficult and complex, and that, in the absence of a reference, such compliance is unlikely ever to be achieved. Antiquated, overcrowded facilities, several of which may be unsalvagable for the continued housing of prisoners, long-standing tolerance by defendants of filthy and dangerous conditions throughout many of the institutions involved in this action, and the apparent inability or unwillingness of successive Correction Administrators to make significant progress toward compliance with the Court's 1980 order all mandate the appointment of a Court Monitor. Indeed, all of the factors cited by another district court and approved by the court of appeals as justifying the appointment of a [**5] special master are present in this case:
the difficulty of superintending the implementation of "a comprehensive, detailed plan for the elimination of the unconstitutional conditions found to exist in the Texas prison system"; TDC's "record of intransigence toward previous court orders requiring changes in TDC's practices and conditions"; the "strained" working relations between TDC's lawyers and the plaintiffs' lawyers; TDC's failure to acknowledge even "completely evident" constitutional violations; and TDC's failure to conform its actual practices to its written policies and procedures.
Ruiz v. Estelle, 679 F.2d at 1160 (5th Cir. 1982).
Thus, the appointment of a court monitor in this case is fully justified under the "exceptional condition" requirement of [*623] Rule 53; moreover, it is equally clear that the rule
does not terminate or modify the district court's inherent equitable power to appoint a person, whatever be his title, to assist it in administering a remedy. The power of a federal court to appoint an agent to supervise the implementation of its decrees has long been established . . . . The function is clear, whatever the title.
[**6] Ruiz v. Estelle, 679 F.2d at 1161 (5th Cir. 1982). This principle was enunciated by the United States Supreme Court in Ex parte Peterson, 253 U.S. 300, 64 L. Ed. 919, 40 S. Ct. 543 (1920), in the following language:
Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties . . . . This power includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause. From the commencement of our Government, it has been exercised by the federal courts, when sitting in equity, by appointing, either with or without the consent of the parties, special masters, auditors, examiners and commissioners.
253 U.S. at 312-313.
The appointment of agents to supervise the implementation of remedial decrees in institutional reform litigation involving prisons and jails is well precedented. See, Nathan, The Use of Masters in Institutional Reform Litigation, 10 Tol.L.Rev. 419 (1979), and Special Project, "The Remedial Process in Institutional Reform [**7] Litigation," 78 Colum.L.Rev. 784 (1978). Precedent for such an appointment exists in this circuit as well as in others. Palmigiano v. Garrahy, 443 F. Supp. 956 (D.R.I. 1977); Bel v. Hall, 392 F. Supp. 274 (D.Mass. 1975).
For the reasons set forth above, as well as those detailed in its Memorandum Opinion of this date, the Court hereby APPOINTS Vincent M. Nathan and Frederick Byers to serve as Court Monitors in this cause. Both Messrs. Nathan and Byers are members of the law firm of Nathan & Roberts, in Toledo, Ohio.
Mr. Nathan graduated from the University of Oklahoma College of Law in 1959. He was a member of the faculty of the College of Law of the University of Toledo for 16 years, during the last 10 of which he served as a professor of law. He has been appointed by district courts to act as a special master or special monitor in five cases: Taylor v. Perini, involving Marion Correctional Institution in Marion, Ohio; Jones v. Wittenberg, involving the Lucas County Jail in Toledo, Ohio; Guthrie v. Evans, involving Georgia State Prison in Reidsville, Georgia; Ruiz v. Estelle, involving the entire Texas prison system; and Duran v. Anaya, involving all [**8] medium, close and maximum security prisons in the State of New Mexico.
Mr. Nathan is the author of "The Use of Masters in Institutional Reform Litigation", 10 Tol.L.Rev. 419 (1979), which was republished and distributed by the Federal Judicial Center. He has served as a consultant for the National Institute of Corrections and is an acknowledged expert in the field of implementation of judicial decrees in a correctional setting. Without question, he is the most experienced individual in the United States in monitoring compliance with federal court decrees relating to prison and jail conditions, having been appointed by district courts throughout the country to oversee compliance with complex remedial orders in litigation virtually identical to that in Puerto Rico.
Mr. Byers is a 1981 graduate of Harvard Law School. From June 1981 through August 1982 he served as law clerk to the Honorable William Wayne Justice, Chief Judge of the United States District Court for the Eastern District of Texas. During the period of his clerkship, Mr. Byers assisted the district court in numerous proceedings relating to its remedial order in Ruiz v. Estelle.
Like Mr. Nathan, Mr. Byers has had exceptionally [**9] broad experience in monitoring remedial decrees in institutional reform litigation. He served as Assistant to the Special Monitor in Guthrie v. Evans and is [*624] the Deputy Special Master in Duran v. Anaya, cases that have been mentioned above. In April 1984 Mr. Byers was appointed by the United States District Court for the Northern District of Georgia to serve as monitor in Fambro v. Fulton County, a case involving conditions in the Fulton County Jail in Atlanta, Georgia.
In summary, Messrs. Nathan and Byers represent a wealth of experience in the field of monitoring judicial decrees mandating reform of correctional institutions. They have worked together on two important cases. The scope and complexity of the problems in Puerto Rico's prisons and jails require the degree of expertise possessed by these two individuals. Moreover, the appointment of Messrs. Nathan and Byers as co-monitors will permit them to exercise full and independent authority under this order of reference to fulfill effectively the myriad responsibilities assigned to them.
In addition to appointing Messrs. Nathan and Byers, the Court will authorize the employment by the Court Monitors of [**10] two assistants. These individuals should be attorneys or correctional experts with the ability to assist the Court Monitors in executing their responsibilities under this Order of Reference. The Assistants to the Court Monitors will be nominated by the Court Monitors for approval by the Court, and their level of compensation will be set by the Court. Both assistants will be required to devote substantially full time to their assignments, and both should be fluent in the Spanish language. n2
n2 In view of the fact that 21 institutions are involved in this litigation, the appointment of two Court Monitors and two assistants to the monitors is required. In Ruiz v. Estelle, the Special Master is assisted by five attorneys appointed to serve as monitors and five administrative assistants. In Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977), cert. denied, 438 U.S. 915, 98 S. Ct. 3144, 57 L. Ed. 2d 1160 (1978), the court of appeals authorized the appointment of a separate monitor for each prison involved in that litigation.
[**11]
As their first duty, the Court Monitors shall file a report detailing defendants' current state of compliance with the Court's order of September 5, 1980, and reporting on conditions disclosed by evidence received by the Court to date. The Court Monitors' report shall recommend specific remedial action required to be taken in order to eliminate the unconstitutional practices and conditions found by the Court to exist. In particular, the Monitors shall recommend the maximum population that can be accommodated in each of Puerto Rico's institutions to insure amelioration of the unconstitutional conditions reflected in the Court's findings regarding overcrowding. In addition, the report of the Court Monitors shall address the subjects of delivery of medical care, housing and treatment of mentally ill prisoners, environmental deficiencies throughout the system, excessive use of force, classification of prisoners, denial of rehabilitative programs, inadequate treatment for drug and alcohol addiction, lack of meaningful assistance for reintegration into the community, the absence of law libraries and lack of meaningful access to courts, failure to provide adequate protective custody and [**12] protection to prisoners, absence of due process and the use of brutality in connection with the disciplinary process, enforced idleness, and violation of the Court's prior order requiring due process and equal protection in the granting of paroles, including the absence of objective standards for parole decisions and practices and procedures of defendants that have the effect of delaying parole and thereby exacerbating the crowded conditions of the institutions. After the submission of their initial report, the Court Monitors shall continue to monitor and report the state of defendants' compliance with all provisions of the Court's remedial decree in this cause and shall make recommendations to the Court concerning steps that should be taken by defendants to achieve compliance.
All actions of the Court Monitors and their assistants shall be under the direct control and supervision of the Court. In particular, the Court Monitors and other persons operating on the Court's behalf shall not intervene in the administrative management of the Correction Administration of the Commonwealth of Puerto Rico [*625] or any of its institutions. The Court Monitors and their assistants shall [**13] not be empowered to direct defendants or any of their subordinates to take or to refrain from taking any specific action to achieve compliance. The sole power to direct compliance and to punish noncompliance remains with the Court. The duties of the Court Monitors, then, shall be to observe, monitor, find facts, report or testify as to their findings, and make recommendations to the Court concerning remedial action that must be taken in order to eliminate unconstitutional conditions that have been found by the Court to exist. The Court Monitors may and should assist defendants in every possible manner, and to this end they may and should confer informally with defendants and their subordinates on matters affecting compliance. In order to accomplish these objectives, the Court Monitors shall have the following powers:
1. The Court Monitors shall have unlimited access to any facilities, buildings or premises under the jurisdiction or control of the Correction Administration of Puerto Rico and no advance notice of any visit or inspection shall be required.
2. The Court Monitors shall have unlimited access to the records, files and papers maintained by defendants to the extent [**14] that such access is related to the performance of the Monitors' duties under this Order of Reference. Such access shall include all departmental, institutional, and inmate records, including but not limited to parole records, medical records and mental health records. The Court Monitors may obtain copies of all such relevant records, files and papers.
3. The Court Monitors may conduct confidential interviews with all staff members and employees of defendants. In addition, they may engage in informal conferences with such staff members and employees, and such persons shall cooperate with the Court Monitors and respond to all inquiries and requests related to compliance with the Court's orders in this cause. The Court Monitors may require compilation and communication of oral or written information relevant to such compliance.
4. The Court Monitors may conduct confidential interviews and meetings with any prisoner or group of prisoners under the jurisdiction of the Correction Administration of the Commonwealth of Puerto Rico, so long as such meetings are held at the institution to which such prisoners are confined.
5. The Court Monitors may attend any parole hearing, or [**15] any formal institutional meetings or proceedings at any institution under the jurisdiction of the Correction Administration.
6. The Court Monitors may require written reports from defendants or any staff member or employee of defendants regarding compliance with this Court's orders.
7. The Court Monitors shall have the full power to order and conduct hearings with respect to defendants' compliance with the Court's orders in this cause. To this end they shall have the power to require the attendance of witnesses, including prisoners, the defendants and any employees of any defendant, and they shall exercise all other powers described in subsection (c) of Rule 53 of the Federal Rules of Civil Procedure.
8. The Court Monitors may select and employ necessary administrative, clerical and support staff. All such persons, as well as the nature of their compensation, shall be approved by the Court in advance of their employment. In addition, with advance permission of the Court, the Court Monitors may employ independent experts and specialists to assist them in fulfilling the responsibilities assigned by this Order of Reference.
9. In exercising the powers enumerated in [**16] paragraphs 1 through 6, supra, the Court Monitors may act by themselves or through Assistants to the Monitors approved by the Court. All actions of such Assistants, however, shall be supervised and coordinated by the Court Monitors in order to accomplish the objectives of this reference.
As has been discussed above, the Court Monitors will be responsible for submitting reports from time to time containing findings [*626] concerning defendants' compliance with the provisions of the Court's orders and the need, if any, for supplemental remedial action. The following procedures shall control the submission of reports by the Court Monitors:
1. Any report prepared by the Court Monitors may be submitted to the parties in draft form as provided for in Rule 53(e)(5) of the Federal Rules of Civil Procedure. In the event that any report is submitted to the parties in draft form, the period for informal comments shall be established by the Court Monitors.
2. The Court Monitors shall file their reports with the Court. Any party may file written objections to a report of the Court Monitors within 15 days of the filing thereof with the Court. If the report has been submitted [**17] to the parties in draft form, however, no objection may be filed that has not been raised during the period for informal comments established by the Court Monitors. Otherwise, any party may file written objections to a report of the Court Monitors within 15 days of the filing thereof with the Court. The objecting party shall note each particular finding or recommendation to which objection is made, shall provide proposed alternative findings and may request a hearing before the Court.
3. Any request for a hearing before the Court must include a list of witnesses and documents to be presented at the hearing. A copy of the request for hearing, the objections and proposed findings shall be served on all parties and the Court Monitors.
4. The Court Monitors may submit reports based upon their observations and investigations in the absence of a formal hearing before them. In such event, the Court Monitors' findings must be based upon evidence that is made part of the record before the Court. Unless unobjected to, findings of the Court Monitors based on such observations and investigations shall not be accorded any presumption of correctness and the "clearly erroneous" rule shall [**18] not apply to them.
5. The Court Monitors also may submit reports based upon hearings held by them. In such instances the reports and findings contained therein shall be treated in accordance with the provisions of Rule 53 of the Federal Rules of Civil Procedure. In particular, the Court Monitors' findings of fact in these instances shall be accepted by the Court unless shown to be clearly erroneous. Any evidence not previously presented to the Court Monitors in the course of the formal hearing preceding their report shall be admitted at a hearing before the Court only upon a showing that the party offering it lacked a reasonable opportunity to present the evidence to the Court Monitors.
The Court Monitors shall not be authorized to hear matters that should be appropriately be the subject of separate judicial proceedings, such as actions under 42 U.S.C.A. 1983, and their duties shall be restricted to those set forth in this order.
Mr. Nathan shall be compensated at the rate of One Hundred and Ten Dollars ($ 110) per hour, and Mr. Byers shall be compensated at the rate of Eighty-Five Dollars ($ 85.00) per hour, for services performed in accordance with this Order of Reference. [**19] Appropriate compensation for members of the Court Monitors' staff shall be established by the Court upon the recommendation of the Court Monitors and after notice to all parties. All reasonable expenses incurred by the Court Monitors and their staff in the course of the performance of their duties, including but not limited to the rental of office space in Puerto Rico, customary office expenses, salaries of staff, long distance telephone, photocopying, printing, travel, data processing, postage and bookkeeping, shall be reimbursed. Defendants are encouraged to reduce the cost of the monitorship by providing suitable office space, office furnishings and equipment, and an automobile for the Court Monitors' use in Puerto Rico.
The cost of the monitorship shall be borne by defendants as costs in this action. The Court Monitors shall submit to the Court periodic statements of time and expenses [*627] for review and approval by the Court.
Defendants are hereby ORDERED to deposit the sum of One Hundred Fifty Thousand Dollars ($ 150,000.00) with the Clerk of this Court as interim payment of costs. This sum shall be transferred by the Clerk to the Court Monitors, by check made payable [**20] to the Center for the Study of Law and Institutional Litigation and addressed to Nathan & Roberts, 644 Spitzer Building, 520 Madison Avenue, Toledo, Ohio 43604, for investment in an interest bearing account, and payments to the Court Monitors out of these funds shall be approved by order of the Court. All interest earned in the account established by the Court Monitors shall accrue to the benefit of defendants. As payments are approved, defendants shall deposit additional sums with the Clerk as the Court may order and direct, and these sums shall be forwarded by the Clerk to the Court Monitors in the manner and for the purpose set forth above.
The Court Monitors may cause copies of this Order of Reference, or portions thereof, to be posted in any facility under the jurisdiction of the Correction Administration of the Commonwealth of Puerto Rico, and may cause such copies to be distributed to prisoners within such facilities and to employees of any of the defendants. This Order of Reference shall be translated into the Spanish language by an official translator of the Court, and a copy of the translated order shall be sent by the Clerk to all counsel and the Court Monitors.
Any action [**21] required or permitted to be taken by the Court Monitors under this Order of Reference may be taken by either of them in his own name, or jointly by both of them.
IT IS SO ORDERED.
San Juan, Puerto Rico, March 20, 1986.
Civil No. 79-4(PG)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
672 F. Supp. 591; 1986 U.S. Dist. LEXIS 27927
March 20, 1986, Decided
March 21, 1986, Filed
SUBSEQUENT HISTORY: [**1]
Reported at: 672 F. Supp. 591 at 621.
PRIOR HISTORY: Original Opinion of March 21, 1986, Reported at: 672 F. Supp. 591.
OPINIONBY:
PEREZ-GIMENEZ
OPINION:
[*621] ORDER OF REFERENCE
PEREZ-GIMENEZ, Chief U.S. District Judge
In a Memorandum Opinion entered this date the Court has found that there is widespread noncompliance with its September 5, 1980, preliminary emergency injunction and that conditions throughout Puerto Rico's adult penal institutions are unconstitutional. For the reasons set forth in this Order of Reference, the Court will appoint two Court Monitors to make a current assessment of the state of defendants' compliance with its September 5, 1980, order, to report on conditions disclosed by evidence subsequently heard and seen by the Court, and to prepare a proposed detailed remedial order calculated to bring about constitutional conditions throughout the correctional system. On receipt of the Court Monitors' findings and recommendations, and after independent review of those findings and recommendations, the Court will issue a final order, including complete findings of fact and conclusions of law, and a comprehensive remedial injunction including the continued use of the [**2] Court Monitors to monitor defendants' compliance with that injunction.
[*622] This action was commenced by a prisoner's letter addressed to the Court on November 9, 1978. Counsel was appointed to represent the complainant on January 3, 1979, and a complaint was filed on February 7 of that year. Following certification of the action as a class action pursuant to Rule 23 F.R.Civ.P. and lengthy discovery, a hearing commenced on May 27, 1980, on plaintiffs' motion for a preliminary injunction. After 17 days of hearings, the Court, by order entered on September 5, 1980, granted emergency relief to the plaintiff class in a number of areas. Feliciano v. Barcelo, 497 F. Supp. 14 (D.P.R. 1979). n1 Further proceedings on plaintiffs' application for permanent injunction were held from November 12, 1980, through March 2, 1981. The Court has supplemented the record by admission of documentary evidence at various times since then. In addition, between May 23 and June 30, 1984, the Court personally inspected Bayamon, the State Penitentiary, the Intensive Treatment Unit (UTI), Miramar, Guayama, Camp Guavate, Ponce, Arecibo, Humacao and Vega Alta. On October 28, 1985, the Court again visited [**3] Bayamon, Ponce, the State Penitentiary and the Intensive Treatment Unit (UTI). Without question, all evidence received and viewed by the Court to date demonstrates that conditions throughout Puerto Rico's correctional system fall far short of constitutionally mandated minimum standards and conditions.
n1 The reported opinion is incorrectly dated January 3, 1979.
On August 26, 1985, the Court directed defendants to report on the state of their compliance with the Court's September 5, 1980, preliminary injunction. By defendants' own admission during the course of a hearing held on September 30, 1985, the report filed by them was not reliable for lack of proper verification. Nonetheless, the Court finds that defendants' report corroborates the Court's finding of pervasive unconstitutional conditions in all of Puerto Rico's prisons, as well as defendants' inability or unwillingness to provide the Court with accurate information regarding defendants' state of compliance with the September 5, 1980, order.
As the Memorandum [**4] Opinion entered today demonstrates, the Court's 1980 order has been largely ignored by defendants. The record of intransigence and lengthy noncompliance by defendants constitutes an "exceptional condition" within the meaning of Rule 53(b) authorizing the appointment of a Court Monitor. Gary W. v. Louisiana, 601 F.2d 240 (5th Cir. 1979). This record also convinces the Court that the achievement of compliance with the Court's current and prospective remedial orders in this case will be unusually difficult and complex, and that, in the absence of a reference, such compliance is unlikely ever to be achieved. Antiquated, overcrowded facilities, several of which may be unsalvagable for the continued housing of prisoners, long-standing tolerance by defendants of filthy and dangerous conditions throughout many of the institutions involved in this action, and the apparent inability or unwillingness of successive Correction Administrators to make significant progress toward compliance with the Court's 1980 order all mandate the appointment of a Court Monitor. Indeed, all of the factors cited by another district court and approved by the court of appeals as justifying the appointment of a [**5] special master are present in this case:
the difficulty of superintending the implementation of "a comprehensive, detailed plan for the elimination of the unconstitutional conditions found to exist in the Texas prison system"; TDC's "record of intransigence toward previous court orders requiring changes in TDC's practices and conditions"; the "strained" working relations between TDC's lawyers and the plaintiffs' lawyers; TDC's failure to acknowledge even "completely evident" constitutional violations; and TDC's failure to conform its actual practices to its written policies and procedures.
Ruiz v. Estelle, 679 F.2d at 1160 (5th Cir. 1982).
Thus, the appointment of a court monitor in this case is fully justified under the "exceptional condition" requirement of [*623] Rule 53; moreover, it is equally clear that the rule
does not terminate or modify the district court's inherent equitable power to appoint a person, whatever be his title, to assist it in administering a remedy. The power of a federal court to appoint an agent to supervise the implementation of its decrees has long been established . . . . The function is clear, whatever the title.
[**6] Ruiz v. Estelle, 679 F.2d at 1161 (5th Cir. 1982). This principle was enunciated by the United States Supreme Court in Ex parte Peterson, 253 U.S. 300, 64 L. Ed. 919, 40 S. Ct. 543 (1920), in the following language:
Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties . . . . This power includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause. From the commencement of our Government, it has been exercised by the federal courts, when sitting in equity, by appointing, either with or without the consent of the parties, special masters, auditors, examiners and commissioners.
253 U.S. at 312-313.
The appointment of agents to supervise the implementation of remedial decrees in institutional reform litigation involving prisons and jails is well precedented. See, Nathan, The Use of Masters in Institutional Reform Litigation, 10 Tol.L.Rev. 419 (1979), and Special Project, "The Remedial Process in Institutional Reform [**7] Litigation," 78 Colum.L.Rev. 784 (1978). Precedent for such an appointment exists in this circuit as well as in others. Palmigiano v. Garrahy, 443 F. Supp. 956 (D.R.I. 1977); Bel v. Hall, 392 F. Supp. 274 (D.Mass. 1975).
For the reasons set forth above, as well as those detailed in its Memorandum Opinion of this date, the Court hereby APPOINTS Vincent M. Nathan and Frederick Byers to serve as Court Monitors in this cause. Both Messrs. Nathan and Byers are members of the law firm of Nathan & Roberts, in Toledo, Ohio.
Mr. Nathan graduated from the University of Oklahoma College of Law in 1959. He was a member of the faculty of the College of Law of the University of Toledo for 16 years, during the last 10 of which he served as a professor of law. He has been appointed by district courts to act as a special master or special monitor in five cases: Taylor v. Perini, involving Marion Correctional Institution in Marion, Ohio; Jones v. Wittenberg, involving the Lucas County Jail in Toledo, Ohio; Guthrie v. Evans, involving Georgia State Prison in Reidsville, Georgia; Ruiz v. Estelle, involving the entire Texas prison system; and Duran v. Anaya, involving all [**8] medium, close and maximum security prisons in the State of New Mexico.
Mr. Nathan is the author of "The Use of Masters in Institutional Reform Litigation", 10 Tol.L.Rev. 419 (1979), which was republished and distributed by the Federal Judicial Center. He has served as a consultant for the National Institute of Corrections and is an acknowledged expert in the field of implementation of judicial decrees in a correctional setting. Without question, he is the most experienced individual in the United States in monitoring compliance with federal court decrees relating to prison and jail conditions, having been appointed by district courts throughout the country to oversee compliance with complex remedial orders in litigation virtually identical to that in Puerto Rico.
Mr. Byers is a 1981 graduate of Harvard Law School. From June 1981 through August 1982 he served as law clerk to the Honorable William Wayne Justice, Chief Judge of the United States District Court for the Eastern District of Texas. During the period of his clerkship, Mr. Byers assisted the district court in numerous proceedings relating to its remedial order in Ruiz v. Estelle.
Like Mr. Nathan, Mr. Byers has had exceptionally [**9] broad experience in monitoring remedial decrees in institutional reform litigation. He served as Assistant to the Special Monitor in Guthrie v. Evans and is [*624] the Deputy Special Master in Duran v. Anaya, cases that have been mentioned above. In April 1984 Mr. Byers was appointed by the United States District Court for the Northern District of Georgia to serve as monitor in Fambro v. Fulton County, a case involving conditions in the Fulton County Jail in Atlanta, Georgia.
In summary, Messrs. Nathan and Byers represent a wealth of experience in the field of monitoring judicial decrees mandating reform of correctional institutions. They have worked together on two important cases. The scope and complexity of the problems in Puerto Rico's prisons and jails require the degree of expertise possessed by these two individuals. Moreover, the appointment of Messrs. Nathan and Byers as co-monitors will permit them to exercise full and independent authority under this order of reference to fulfill effectively the myriad responsibilities assigned to them.
In addition to appointing Messrs. Nathan and Byers, the Court will authorize the employment by the Court Monitors of [**10] two assistants. These individuals should be attorneys or correctional experts with the ability to assist the Court Monitors in executing their responsibilities under this Order of Reference. The Assistants to the Court Monitors will be nominated by the Court Monitors for approval by the Court, and their level of compensation will be set by the Court. Both assistants will be required to devote substantially full time to their assignments, and both should be fluent in the Spanish language. n2
n2 In view of the fact that 21 institutions are involved in this litigation, the appointment of two Court Monitors and two assistants to the monitors is required. In Ruiz v. Estelle, the Special Master is assisted by five attorneys appointed to serve as monitors and five administrative assistants. In Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977), cert. denied, 438 U.S. 915, 98 S. Ct. 3144, 57 L. Ed. 2d 1160 (1978), the court of appeals authorized the appointment of a separate monitor for each prison involved in that litigation.
[**11]
As their first duty, the Court Monitors shall file a report detailing defendants' current state of compliance with the Court's order of September 5, 1980, and reporting on conditions disclosed by evidence received by the Court to date. The Court Monitors' report shall recommend specific remedial action required to be taken in order to eliminate the unconstitutional practices and conditions found by the Court to exist. In particular, the Monitors shall recommend the maximum population that can be accommodated in each of Puerto Rico's institutions to insure amelioration of the unconstitutional conditions reflected in the Court's findings regarding overcrowding. In addition, the report of the Court Monitors shall address the subjects of delivery of medical care, housing and treatment of mentally ill prisoners, environmental deficiencies throughout the system, excessive use of force, classification of prisoners, denial of rehabilitative programs, inadequate treatment for drug and alcohol addiction, lack of meaningful assistance for reintegration into the community, the absence of law libraries and lack of meaningful access to courts, failure to provide adequate protective custody and [**12] protection to prisoners, absence of due process and the use of brutality in connection with the disciplinary process, enforced idleness, and violation of the Court's prior order requiring due process and equal protection in the granting of paroles, including the absence of objective standards for parole decisions and practices and procedures of defendants that have the effect of delaying parole and thereby exacerbating the crowded conditions of the institutions. After the submission of their initial report, the Court Monitors shall continue to monitor and report the state of defendants' compliance with all provisions of the Court's remedial decree in this cause and shall make recommendations to the Court concerning steps that should be taken by defendants to achieve compliance.
All actions of the Court Monitors and their assistants shall be under the direct control and supervision of the Court. In particular, the Court Monitors and other persons operating on the Court's behalf shall not intervene in the administrative management of the Correction Administration of the Commonwealth of Puerto Rico [*625] or any of its institutions. The Court Monitors and their assistants shall [**13] not be empowered to direct defendants or any of their subordinates to take or to refrain from taking any specific action to achieve compliance. The sole power to direct compliance and to punish noncompliance remains with the Court. The duties of the Court Monitors, then, shall be to observe, monitor, find facts, report or testify as to their findings, and make recommendations to the Court concerning remedial action that must be taken in order to eliminate unconstitutional conditions that have been found by the Court to exist. The Court Monitors may and should assist defendants in every possible manner, and to this end they may and should confer informally with defendants and their subordinates on matters affecting compliance. In order to accomplish these objectives, the Court Monitors shall have the following powers:
1. The Court Monitors shall have unlimited access to any facilities, buildings or premises under the jurisdiction or control of the Correction Administration of Puerto Rico and no advance notice of any visit or inspection shall be required.
2. The Court Monitors shall have unlimited access to the records, files and papers maintained by defendants to the extent [**14] that such access is related to the performance of the Monitors' duties under this Order of Reference. Such access shall include all departmental, institutional, and inmate records, including but not limited to parole records, medical records and mental health records. The Court Monitors may obtain copies of all such relevant records, files and papers.
3. The Court Monitors may conduct confidential interviews with all staff members and employees of defendants. In addition, they may engage in informal conferences with such staff members and employees, and such persons shall cooperate with the Court Monitors and respond to all inquiries and requests related to compliance with the Court's orders in this cause. The Court Monitors may require compilation and communication of oral or written information relevant to such compliance.
4. The Court Monitors may conduct confidential interviews and meetings with any prisoner or group of prisoners under the jurisdiction of the Correction Administration of the Commonwealth of Puerto Rico, so long as such meetings are held at the institution to which such prisoners are confined.
5. The Court Monitors may attend any parole hearing, or [**15] any formal institutional meetings or proceedings at any institution under the jurisdiction of the Correction Administration.
6. The Court Monitors may require written reports from defendants or any staff member or employee of defendants regarding compliance with this Court's orders.
7. The Court Monitors shall have the full power to order and conduct hearings with respect to defendants' compliance with the Court's orders in this cause. To this end they shall have the power to require the attendance of witnesses, including prisoners, the defendants and any employees of any defendant, and they shall exercise all other powers described in subsection (c) of Rule 53 of the Federal Rules of Civil Procedure.
8. The Court Monitors may select and employ necessary administrative, clerical and support staff. All such persons, as well as the nature of their compensation, shall be approved by the Court in advance of their employment. In addition, with advance permission of the Court, the Court Monitors may employ independent experts and specialists to assist them in fulfilling the responsibilities assigned by this Order of Reference.
9. In exercising the powers enumerated in [**16] paragraphs 1 through 6, supra, the Court Monitors may act by themselves or through Assistants to the Monitors approved by the Court. All actions of such Assistants, however, shall be supervised and coordinated by the Court Monitors in order to accomplish the objectives of this reference.
As has been discussed above, the Court Monitors will be responsible for submitting reports from time to time containing findings [*626] concerning defendants' compliance with the provisions of the Court's orders and the need, if any, for supplemental remedial action. The following procedures shall control the submission of reports by the Court Monitors:
1. Any report prepared by the Court Monitors may be submitted to the parties in draft form as provided for in Rule 53(e)(5) of the Federal Rules of Civil Procedure. In the event that any report is submitted to the parties in draft form, the period for informal comments shall be established by the Court Monitors.
2. The Court Monitors shall file their reports with the Court. Any party may file written objections to a report of the Court Monitors within 15 days of the filing thereof with the Court. If the report has been submitted [**17] to the parties in draft form, however, no objection may be filed that has not been raised during the period for informal comments established by the Court Monitors. Otherwise, any party may file written objections to a report of the Court Monitors within 15 days of the filing thereof with the Court. The objecting party shall note each particular finding or recommendation to which objection is made, shall provide proposed alternative findings and may request a hearing before the Court.
3. Any request for a hearing before the Court must include a list of witnesses and documents to be presented at the hearing. A copy of the request for hearing, the objections and proposed findings shall be served on all parties and the Court Monitors.
4. The Court Monitors may submit reports based upon their observations and investigations in the absence of a formal hearing before them. In such event, the Court Monitors' findings must be based upon evidence that is made part of the record before the Court. Unless unobjected to, findings of the Court Monitors based on such observations and investigations shall not be accorded any presumption of correctness and the "clearly erroneous" rule shall [**18] not apply to them.
5. The Court Monitors also may submit reports based upon hearings held by them. In such instances the reports and findings contained therein shall be treated in accordance with the provisions of Rule 53 of the Federal Rules of Civil Procedure. In particular, the Court Monitors' findings of fact in these instances shall be accepted by the Court unless shown to be clearly erroneous. Any evidence not previously presented to the Court Monitors in the course of the formal hearing preceding their report shall be admitted at a hearing before the Court only upon a showing that the party offering it lacked a reasonable opportunity to present the evidence to the Court Monitors.
The Court Monitors shall not be authorized to hear matters that should be appropriately be the subject of separate judicial proceedings, such as actions under 42 U.S.C.A. 1983, and their duties shall be restricted to those set forth in this order.
Mr. Nathan shall be compensated at the rate of One Hundred and Ten Dollars ($ 110) per hour, and Mr. Byers shall be compensated at the rate of Eighty-Five Dollars ($ 85.00) per hour, for services performed in accordance with this Order of Reference. [**19] Appropriate compensation for members of the Court Monitors' staff shall be established by the Court upon the recommendation of the Court Monitors and after notice to all parties. All reasonable expenses incurred by the Court Monitors and their staff in the course of the performance of their duties, including but not limited to the rental of office space in Puerto Rico, customary office expenses, salaries of staff, long distance telephone, photocopying, printing, travel, data processing, postage and bookkeeping, shall be reimbursed. Defendants are encouraged to reduce the cost of the monitorship by providing suitable office space, office furnishings and equipment, and an automobile for the Court Monitors' use in Puerto Rico.
The cost of the monitorship shall be borne by defendants as costs in this action. The Court Monitors shall submit to the Court periodic statements of time and expenses [*627] for review and approval by the Court.
Defendants are hereby ORDERED to deposit the sum of One Hundred Fifty Thousand Dollars ($ 150,000.00) with the Clerk of this Court as interim payment of costs. This sum shall be transferred by the Clerk to the Court Monitors, by check made payable [**20] to the Center for the Study of Law and Institutional Litigation and addressed to Nathan & Roberts, 644 Spitzer Building, 520 Madison Avenue, Toledo, Ohio 43604, for investment in an interest bearing account, and payments to the Court Monitors out of these funds shall be approved by order of the Court. All interest earned in the account established by the Court Monitors shall accrue to the benefit of defendants. As payments are approved, defendants shall deposit additional sums with the Clerk as the Court may order and direct, and these sums shall be forwarded by the Clerk to the Court Monitors in the manner and for the purpose set forth above.
The Court Monitors may cause copies of this Order of Reference, or portions thereof, to be posted in any facility under the jurisdiction of the Correction Administration of the Commonwealth of Puerto Rico, and may cause such copies to be distributed to prisoners within such facilities and to employees of any of the defendants. This Order of Reference shall be translated into the Spanish language by an official translator of the Court, and a copy of the translated order shall be sent by the Clerk to all counsel and the Court Monitors.
Any action [**21] required or permitted to be taken by the Court Monitors under this Order of Reference may be taken by either of them in his own name, or jointly by both of them.
IT IS SO ORDERED.
San Juan, Puerto Rico, March 20, 1986.